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On February 12, 2009, the New York Court of Appeals answered two questions that had been certified to it by the U.S. Court of Appeals for the Second Circuit, both involving attorney misconduct pursuant to Judiciary Law Section 487 (Misconduct by Attorneys). In Amalfitano v. Rosenberg , NY Slip Op 01069 (2009). the questions were as follows:

No. 1: Can a successful lawsuit for treble damages brought under N.Y. Jud. Law Section 487 be based on an attempted but unsuccessful deceit?

No. 2: In the course of such a lawsuit, may the costs of defending the litigation instituted by a complaint containing a material misrepresentation of fact be treated as the proximate result of the misrepresentation if the court upon which the deceit was attempted at no time acted on the belief that the misrepresentation was true?

To greatly simplify the Court's opinion, the answer is “yes” to both. Rosenberg allegedly tried to deceive the trial court by falsely claiming that his client had been a partner in the family business that was the subject of the litigation. Rosenberg relied on the common law to argue that plaintiffs could not recover against him because his attempt to deceive the trial court was unsuccessful. The N.Y Court of Appeals, however, agreed with the District Court that Judiciary Law 487 does not derive from common law fraud. Instead, it descends “from the first Statute of Westminster, which was adopted by the Parliament summoned by King Edward I of England in 1275.” After an erudite survey of the relevant legal history, the Court concluded that Section 487 “is a unique statute of ancient origin in the criminal law of England. The operative language at issue–‘guilty of any deceit'- focuses on the attorney's intent to deceive, not the deceit's success.”

With regard to Question Number 2, the N.Y. Court of Appeals referred back to its answer to the first question, noting that “recovery of treble damages under Judiciary Law Section 487 does not depend upon the court's belief in a material representation of fact in a complaint.” Because this action “could not have gone forward in the absence of the material misrepresentation, the party's legal expenses in defending the lawsuit may be treated as the proximate result of the misrepresentation.” And so, Mr. Rosenberg would appear to be out of arguments, out of luck, and likely out of some serious money.

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About the Author

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

• $250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

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